Wickey v The Queen (No 2)

[2012] ACTCA 51

ROBERT LACHLAN WICKEY v THE QUEEN (NO 2)
[2012] ACTCA 51 (10 September 2012)

APPEAL AND NEW TRIAL – Jurisdiction, practice and procedure – Court Procedures Rules 2006 (ACT) r 6906 – Test for “mistake” – Error in sentence commencement date a mistake – Applicability of r 6906 to appellate criminal proceedings – Jurisdiction of single judge to correct mistake of the Full Court – Words and phrases – “Judgment” includes sentence.

Crimes (Sentencing) Act 2005 (ACT), s 63
Supreme Court Act 1933 (ACT), s 37

Court Procedures Rules2006 (ACT), ch 6, rr 5001, 6000, 6906

Australian Communication and Media Authority v Clarity1 Pty Ltd (2009) 173 FCR 297
Burrell v The Queen (2008) 238 CLR 218
Cawood v Infraworth Pty Ltd [1990] 2 Qd R 114
Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566
Hatton v Harris [1892] AC 547
Hawkins v Hawkins (2009) 3 ACTLR 210
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
R v Cripps; Ex Parte Muldoon [1984] 1 QB 686
Sidorov v Sidorov (No 2) [2008] FamCA 1102
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Wickey v McVicar [2012] ACTCA 38
Wickey v McVicar [2011] ACTSC 159
Jovanovic (1999) 106 A Crim R 548

EX TEMPORE JUDGMENT

No. ACTCA 49 – 2011
No. SCA 26 of 2011

Judge:             Refshauge J
Court of Appeal of the Australian Capital Territory

Date:              10 September 2012

IN THE SUPREME COURT OF THE     )          
  )          No. ACTCA 49 – 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )          No. SCA 26 of 2011
COURT OF APPEAL  )

ROBERT LACHLAN WICKEY

v

THE QUEEN

ORDER

Judge:  Refshauge J
Date:  10 September 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The orders of the Court made on 2 August 2012 be amended as follows:

a.        by omitting “17 April 2011” and substituting “17 April 2010”;  and

b.        by omitting “16 February 2014” and substituting “16 February 2013”.

1. Any warrants issued in reliance on the Court’s order be amended to be consistent with order 1.

1. The appellant, Robert Lachlan Wickey, was sentenced in the Magistrates Court to a total term of imprisonment of five years for 11 different offences, to which he had pleaded guilty. 

1. He appealed to the Supreme Court, which on 12 September 2011 dismissed the appeal, save to reduce the sentence for one offence. Because of the order in which the sentences were cumulated, the reduced sentence was already wholly concurrent on other sentences, so that the reduction did not vary the total sentence.  The Court also amended the start date for the sentence by a few days, in circumstances to which I will refer later. 

1. Mr Wickey then appealed to this Court which, on 2 August 2012, upheld the appeal and reduced the sentence to a total term of imprisonment of four years and three months.  The Court directed…